On Monday (June 29), Montana Attorney General Tim Fox and 12 other states filed a lawsuit against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) over the new regulation broadly expanding the definition of “Waters of the U.S.” under the Clean Water Act. The case was filed in the U.S. district court for the District of North Dakota.
In their complaint, the states contend the new definition of “Waters of the U.S.” violates provisions of the Clean Water Act, the National Environmental Policy Act, and the United States Constitution.
“Congress and the U.S. Supreme Court have rejected the very regulatory expansion that the EPA and Corps of Engineers are implementing through this new rule,” Attorney General Fox said. “This is yet another example of a federal agency acting by decree to bypass Congress and violate rights of states reserved under the law and the U.S. Constitution.”
The states assert that the EPA’s and Corps’ new rule wrongly broadens federal authority by placing a majority of water and land resource management in the hands of the federal government. Congress and the courts have repeatedly affirmed that the states have primary responsibility for the protection of intrastate waters and land management. The states argue that the burdens created by these new regulations on waters and lands are harmful and will negatively affect farmers, ranchers, and landowners. As a result, landowners will have to seek additional federal permits or face substantial fines and federal criminal enforcement actions.
“Clean water is important to all of us, and we Montanans know how to protect our waters,” Fox said. “Through our state Constitution, the 1971 Water Quality Control Act, and other legislation, we have established strong water protections tailored to the unique needs of our communities. These new federal regulations add a complicated and unnecessary layer of rules.”
The states are asking the court to vacate the rule and enjoin the EPA and Corps from enforcing the new, significantly expanded definition of “Waters of the U.S.”
Senator Brad Hamlett (D-Cascade), chairman of the legislature’s Water Policy Interim Committee, spoke in support of the lawsuit. “Montana’s Constitution states that all of the water that falls and flows within the boundaries of Montana belongs to the state for the beneficial use of its citizens,” Sen. Hamlett said. “Now we have two federal executive branch agencies, the EPA and the Army Corps of Engineers, attempting to assert control over Montana state waters by rule. This is, in my opinion, unconstitutional, a deliberate interference with our state’s most valuable resource, and must be stopped dead in its tracks. This is not about clean water, it is about jurisdiction, as Montana being a headwaters state cherishes and protects its waters and knowing the lay of the land and our waters best we definitely, constitutionally, and practically need to remain in control.”
Montana’s local governments and agricultural community also expressed their support of Attorney General Fox’s decision to challenge the new federal regulations.
“The Montana Association of Counties is pleased that Attorney General Fox is joining other states in challenging these new regulations,” said Harold Blattie, executive director of the Montana Association of Counties. “The EPA and Corps failed to consider concerns expressed by over 40 Montana counties about placing an undue burden on their ability to perform routine road maintenance. The final regulation lacks the clarity for counties to even be able to tell which roadside ditches are now under the EPA’s and Corps’ jurisdiction and which are not.”
“In our initial review of the finalized Waters of the U.S. regulation, it represents a significant expansion of federal jurisdiction beyond current practices and the limitations affirmed by the U.S. Supreme Court,” said Errol Rice, Executive Vice President of the Montana Stockgrowers Association. “The final regulation ignores state and local efforts to protect these waters and will have major implications for all Montanans. As ranchers who already have practices in place to promote water quality, we see the final regulation as problematic to implement and causing more harm and confusion rather than clarifying the law.”
“Farmers and ranchers are still very concerned with the EPA’s new regulation,” said Nicole Rolf of the Montana Farm Bureau Federation. “It takes power away from state and local governments, while at the same time burdening farmers and ranchers with unnecessary and ridiculous rules. We very much appreciate that Attorney General Tim Fox recognizes these problems and is willing to defend Montanans who make their living raising food.”
The Montana Chamber of Commerce, Montana Building Industry Association, Montana Contractors Association, and the Montana Association of Realtors are also in support of the legal challenge.
Joining Montana in the suit are the states of Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.
–Press Release, Attorney General Tim Fox
WASHINGTON, D.C. — On Monday, Senator Steve Daines released the following statement on Montana Attorney General Tim Fox and 12 other states’ lawsuit against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) over the new regulation broadly expanding the definition of the Waters of the United States rule (WOTUS).
“I applaud Attorney General Tim Fox for standing up for Montana farmers, ranchers and small businesses against another egregious power grab by the Obama administration. This rule has the capability to cripple Montana agriculture and natural resources, hurt Montana jobs and threaten Montanans’ property rights. As this lawsuit moves through the judicial system, I will continue to fight tirelessly against the EPA’s overreach to protect Montana jobs, agriculture and natural resources.”
Daines is a cosponsor of S. 1140, the Federal Water Quality Protection Act that would direct the EPA and Corps to issue a revised WOTUS rule that protects traditional navigable water from water pollution, while also protecting farmers, ranchers and private landowners.
The full text of S.1140 is available here.